Citation NR: 9718259
Decision Date: 05/23/97 Archive Date: 06/03/97
DOCKET NO. 94-15 428 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Houston,
Texas
THE ISSUE
Entitlement to service connection for a right leg disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Spear Ethridge, Associate Counsel
INTRODUCTION
The veteran had active duty from August 1951 to August 1955.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating actions by the Houston, Texas
Regional Office (RO) of the Department of Veterans' Affairs
(VA).
This case was twice before the Board, in May 1996 and October
1996, respectively, on which occasions it was remanded for
additional development. Such development has been completed
and case is now again before the Board for appellate review.
In the latter remand, the issue on appeal was restyled by the
Board from one of substantiation of new and material evidence
to entitlement to service connection. More specifically, it
was noted that by February 1980 and June 1980 rating
decisions, entitlement to service connection for residuals of
a right femur fracture was denied on the basis that the
fracture pre-existed service and no aggravation was shown
during service. The veteran was properly notified of the
determinations; a timely appeal was not perfected therefrom.
The November 1992 determination of the RO found that no new
and material evidence had been submitted to reopen the claim
for service connection by aggravation of residuals from a
right femur fracture. After review of the claims folder, the
Board was of the opinion that the issue should be restyled
and that de novo review was in order.
In conclusion, the Board construed the issue for appellate
consideration to be that of entitlement to service connection
for a right leg disability. The issue includes the questions
of whether the veteran has residual disability from a right
leg fracture of the fibula in service and whether his pre-
existing right leg femur fracture was aggravated by such
injury or other duties of service.
CONTENTIONS OF APPELLANT ON APPEAL
Essentially, the veteran contends that he has a right leg
disability which either began in or was aggravated by service
and persists to the present. Specifically, the veteran
contends that he was given "light-duty" status when he
enlisted, and that the assignments he was given while in
service were extremely difficult physical assignments that
aggravated a pre-existing right femur fracture. As indicated
in a statement dated in September 1992, the veteran further
contends that he broke his leg in the summer of 1952 while
working on base in England and that he suffers from the
residuals of this injury. Therein he also contends that he
broke his right fibula in an automobile accident in January
1955 and that this aggravated his pre-existing right femur
fracture.
Since the completion of the development requested in the
Board’s October 1996 remand, the representative argues that
an independent medical expert opinion should be obtained with
regard to the veteran’s claim.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for service connection for a
right leg disability.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's claim has been obtained.
2. Residuals of a right leg disability, noted as atrophy of
the right thigh and shown on service entrance examination,
existed prior to entry into wartime service, and there was no
increase in basic pathology during such service.
CONCLUSION OF LAW
Residuals of a right leg disorder clearly and unmistakably
pre-existed service entry; the disorder was not aggravated
during wartime service. 38 U.S.C.A. §§ 1110, 1111, 1153,
5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that the provisions of 38 U.S.C.A.
§ 5107 have been met, in that the claim is well grounded and
adequately developed. As stated in the introduction, the
case has been remanded twice before and is now fully
developed. Accordingly, no further assistance to the veteran
is required to comply with the duty to assist mandated by
38 U.S.C.A. § 5107(a). Waddell v. Brown, 5 Vet.App. 454, 456
(1993); Murphy v. Derwinski, 1 Vet.App. 78 (1990).
I. Pertinent Law and Regulations
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by active
service. 38 U.S.C.A. § 1110.
Service connection connotes many factors but basically it
means that the facts, shown by evidence, establish that a
particular injury or disease resulting in disability was
incurred coincident with service in the Armed Forces. This
may be accomplished by affirmatively showing inception or
aggravation during service or through the application of
statutory presumptions. Determinations as to service
connection will be based on review of the entire evidence of
record, with due consideration to the policy of the VA to
administer the law under a broad and liberal interpretation
consistent with the facts in each individual case. 38 C.F.R.
§ 3.303(a) (1996).
The veteran will be considered to have been in sound
condition when examined, accepted and enrolled for service
except as to defects, infirmities, or disorders noted at
entrance into service, or where clear and unmistakable
evidence demonstrates that an injury or disease existed prior
thereto. Only such conditions as are recorded in examination
reports are to be considered as noted. 38 U.S.C.A. § 1111;
38 C.F.R. § 3.304.
There are medical principles which are so universally
recognized as to constitute fact (clear and unmistakable
proof), and when in accordance with these principles
existence of a disability prior to service is established, no
additional or confirmatory evidence is necessary.
Consequently with notation or discovery during service of
such residual conditions (scars; fibrosis of the lungs;
atrophies following disease of the central or peripheral
nervous system; healed fractures; absent, displaced or
resected parts of organs; supernumerary parts; congenital
malformations or hemorrhoidal tags or tabs, etc.) with no
evidence of the pertinent antecedent active disease or injury
during service the conclusion must be that they preexisted
service. 38 C.F.R. § 3.303(c) (1996).
A preexisting disease or injury will be considered to have
been aggravated by active service, where there is an increase
in disability during service, unless there is a specific
finding that the increase in disability was due to the
natural progress of the disease. 38 U.S.C.A. § 1153;
38 C.F.R. § 3.306(a) (1996).
Clear and unmistakable evidence (obvious or manifest) is
required to rebut the presumption of aggravation where the
pre-service disability underwent an increase in severity in
service. This includes medical facts and principles which
may be considered to determine whether the increase was due
to the natural progress of the condition. Aggravation of a
preexisting disease or injury may not be conceded where the
condition underwent no increase in severity during service on
the basis of all of the evidence of record pertinent to the
manifestations of the disability prior to, during, and
subsequent to service. Consideration will be given to the
circumstances, conditions, and hardships of service.
38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b) (1996).
II. Factual Background
The service medical records show that on an enlistment
examination report dated on August 2, 1951, the examiner
noted that with regard to the lower extremities, and in
particular the right thigh lateral aspect, there was atrophy
of the right thigh muscles with limitation of motion. The
examiner noted that good strength of 30 percent restriction
to flexion of the knee was present. By history, the veteran
indicated that he broke his right thigh in September 1948,
and that the leg was operated on at that time. The right leg
was broken a second time in March 1949, also with operation.
The veteran further reported having a right leg operation in
January 1950.
On August 25, 1951, the veteran was seen at the orthopedic
clinic for consultation for a permanent duty restriction from
physical training due to the deformity of the right leg. The
examiner noted the veteran’s history of a leg fracture in
September 1948, with an accidental re-fracture in March 1949
when the veteran slipped. It was reported that the veteran
underwent “quadroplasty” in January 1950 because the knee was
stiff. At an August 27, 1951 consultation, essentially the
same was reported, and that the veteran had little disability
from the leg except some pain following long marches.
Examination revealed marked atrophy of the right quadriceps
and vastus medialis. Strength of the right quadriceps was
noted as being fairly good.
As for the veteran’s contention that his leg was broken in
the summer of 1952 or 1953 while he was working on base in
England, a March 1955 service medical record shows that the
veteran had just returned on January 20, 1955 from 3 years in
England. Five days later, on January 25, 1955, the veteran
was hospitalized for injuries received in an automobile
accident. Injuries sustained included multiple contusions of
the ankles, abdomen, back and chest. A fracture of the left
10th rib posterior next to the spine was noted on X-ray. The
veteran was treated for severe pain, and the diagnosis
included simple fracture of the left 10th rib, and multiple
contusion. An outpatient index record dated in February 1955
indicated that the veteran complained of pain on the right
leg after the January 1955 automobile accident. The examiner
noted that, for the right leg, the healing fracture of the
proximal fibula fragments were “ok.”
Other March 1955 records show that the veteran was seen in
the infirmary for evaluation of an old leg injury and profile
evaluation. The examiner noted that the veteran had an old
fracture of the distal third of the right femur which had
resulted in deformity of the right leg with shortening of the
right leg and atrophy of the thigh muscles. The examiner
noted that the shortening of the leg had resulted in the
veteran developing a very poor posture, which tilted the
pelvis to make up for the shortening and threw excessive
strain on the back muscles. A 3/4 inch heel lift was ordered
for the veteran’s right shoe. It was recommended that the
veteran be given a definite L-3 profile, permanent, for old
fracture of the right femur and poor back posture secondary
to right leg deformity. Definite restrictions against doing
physical training were recommended, and probable restrictions
against prolonged standing at any one time was also
recommended. The examiner noted that there was no definite
operative treatment that could be done at that time to
improve the veteran’s condition. The examiner commented that
the veteran probably had a permanent deformity and would
continue to have back pain and trouble all of his life due to
the poor posture which resulted from the leg deformity.
A revision of the veteran’s physical profile was done in
April 1955. The previous profile was described as an old
fracture of the distal third right femur, resulting in
deformity of the right leg. The revised profile stated
“shortening of right leg and atrophy muscles...resulting in
very poor posture, tilting the pelvis, (and) excessive strain
on back muscles.”
Upon service discharge in August 1955, the veteran again
noted a medical history of a fractured right femur in
September 1948, with plate and screws installed; and re-
fracture in March 1949 with quadroplasty done thereafter. In
the section for a statement of the veteran’s present health
given in his own words, the veteran indicated that he had no
complaints except for chronic backache. The corresponding
report of medical examination revealed that the lower
extremity was abnormal. The examiner stated that there was
atrophy of the lateral “fernord” muscle group and of
quadriceps “fenoris,” with approximately 75 percent strength
in (the) groups. In the summary of defects and diagnosis
section of the report, the examiner indicated that there was
atrophy of the lateral femoral muscle group and “of
approximately 75 percent strength in groups,” with an
incision scar on the lateral aspect of the right thigh.
Following service discharge the veteran was seen and treated
by VA and privately for a right lower extremity disorder. A
pertinent summary of the medical evidence of record is
indicated below.
A February 1977 private treatment record noted that there was
a mild deformity of the right upper leg, secondary to an old
injury. Two May 1992 VA records show right knee degenerative
joint disease, valgus instability, and right knee with muscle
atrophy. August 1992 VA records show chronic knee pain with
degenerative joint disease, post surgery. The same was noted
in December 1992. VA records in January 1993 show old valgus
deformity of the mid third femur with slight deformity noted.
Severe degenerative joint disease of the right knee was noted
in August 1993. October 1993 X-rays of the right femur, to
rule out fracture, were normal. The veteran reportedly
slipped and fell while being treated at VA. VA records in
January 1994 show that the veteran complained of right knee
pain with muscle spasm. The diagnosis was knee degenerative
joint disease. That month the veteran was seen at the VA
pain clinic and evaluation revealed that he was in the range
of patients who had subjective experience of pain exacerbated
by psychological factors; which did not rule out physical
pathology. Right knee pathology was again noted in VA
records dated in April 1994. The veteran was hospitalized
for elective surgery in May 1994.
Other private medical records show that in July 1993 the
veteran was seen for consultation of total replacement of the
right knee. A history included that the veteran suffered
injury to the right knee as a teenager. X-rays confirmed
valgus deformity of the right femur, and the impression was
post-traumatic arthritis secondary to deformity in the right
knee valgus. A September 1994 physician’s letter indicated
that there was an infected non-union of the mid-portion of
the femur, with previous right knee joint excised for total
knee arthroplasty which also became infected. February 1995
hospitalization records show a post-operative result of
failed right knee prosthesis. Hospitalization in March
1995 revealed a failed infected total right knee arthroplasty
and nonunion osteotomy of the right knee. Detailed private
physician’s records from 1995 show that show that in February
there was a broken intramedullary wire associated with the
right leg. The veteran was given possible treatment
alternatives, and it was noted that there was an outside
chance of knee fusion and/or amputation. In March 1995,
sutures were removed and X-rays showed good position with no
change. In April 1995, examination revealed that revision
was healed for tibial osteotomy and that femoral osteotomy
appeared good. In May 1995, X-rays showed good position. In
June 1995, X-rays showed that the graft was probably
consolidating and that the veteran went from using a brace to
a cane. In July 1995, there was 50 degrees of motion and X-
rays showed probable healing. In October 1995, there was 55
to 60 degrees of motion, the veteran walked unaided, with
shortness noted on that side, and X-rays showed the presence
of patella baja.
Private medical records from 1996 show that the veteran
continued post-operative care. In March it was noted X-rays
showed good position of the prosthesis. In June 1996, he was
seen for swelling in the inferior aspect of the incision,
with continued drainage shown later that month. The veteran
was given antibiotics. In July 1996, there was initially
minimal drainage, and later continued swelling on the
anterior aspect of the tibia with draining. He was seen in
August for dressing changes, and on one examination it was
noted that the wound was healing nicely. In September 1996,
he was seen for pain and drainage, and it was suggested that
the prosthesis needed to be removed. In October 1996, plans
were made to remove the prosthesis. In November 1996, it was
noted that reinsertion of a custom made prosthesis would
later occur.
Pursuant to the Board’s request in its October 1996 remand,
the veteran was seen for a complete orthopedic evaluation. A
January 1997 VA examination report was done after the veteran
had undergone aforementioned surgeries. The examiner began
the examination by indicating that the claims file, and
available medical records, were reviewed for purposes of the
evaluation.
The veteran reported a history of a sustained severe right
femoral fracture, at the junction of the middle and distal
one-third, at the age of 15 or 16 years old. Open
reduction/internal fixation was done with plates and screws
and it failed to heal. He then had a second operation with
pins through plaster and other devices, which gradually lead
to healing of the right femur with some shortening and some
muscle atrophy of the quadriceps muscles. The examiner noted
that the veteran apparently also had some limitation of
motion of the knee, but in spite of those problems, he was
accepted into the Air Force on “conditional light duty.” The
veteran reported that he was placed on mechanics work and
says he re-injured the right leg many times by slipping and
falling, or getting knocked down by a heavy cart. It was
noted that the veteran thought that he had a “slight
fracture” at the old fracture site and was placed in a
walking cast for two to three months. In reviewing the
veteran’s record, the examiner stated that he could not
identify any records in which to support the veteran’s
contention. The examiner also stated that the only fracture
that was apparently sustained occurred in a motor vehicle
accident wherein the proximal fibula and a rib fracture were
incurred at the same time. The examiner further stated that
“[a]t any rate, the ‘repeat fracture’ healed up in a cast,”
but as time went by, the veteran reported that he had
progressive problems with the leg and the knee; with falling
and re-injuring the knee itself; and with decreased range of
motion. The examiner stated that there was no evidence of
those re-injuries indicated in the veteran’s medical record
during active duty time.
The examiner went on to state that the fracture of the fibula
apparently healed without any problems, and that the veteran
stated that he had had no problems with that old fracture of
the proximal fibula. The examiner noted that the veteran did
not feel that the fibular fracture aggravated his femur
fracture. He claimed instead that the other injury to the
femur aggravated his old original injury, and that multiple
falls and heavy duty in the Air Force also aggravated the old
injury. The examiner noted that the veteran felt that he was
supposed to have had light duty and that he was overworked
and worked outside of his restrictions during service. Also
that, over the years, the veteran felt that the had increased
pain in the femur and limitations of how long he could stand
and walk. He developed some chronic swelling and buckling
inwards of the right knee, which became more severe over the
last few years, until the point where the knee would no
longer support him.
The examiner noted that the veteran was seen at VA and told
that he had some arthritis in the knee as well. In June
1994, a distal femoral osteotomy and total knee replacement
was done all at one time. He had a donor bone graft applied.
The examiner noted that, unfortunately, that became infected
and they had to remove the prosthesis and inserted a plastic
bone block to maintain the gap. The veteran was on
antibiotics and was hospitalized for over three months. In
February 1995, a second total knee replacement was done and
an attempt was made to repair the nonunion of the osteotomy
site of the distal femur. This was done with an autogenous
rib bone graft and that osteotomy then went on to heal. That
second prosthesis became loose and was removed. Several
weeks later, another revision of that total knee was carried
out for the third time. That was done with a custom
prosthesis in December 1996, just one month prior to this
evaluation. The examiner stated that, “post-operatively,”
the veteran was “an immobilizer” until just a day or so ago,
and was (now) up on single crutches with some mild to
moderate touch down weight bearing on that side.
Physical examination revealed a slender, but alert and
cooperative veteran, whose right leg was just one month post
operation and was still in the acute healing phase from a
revision of a total knee replacement. The present condition
of the lower extremity showed a range of motion from -10
degrees to 30 degrees of flexion actively, with full
extension passively. The veteran could not actively fully
extend. The incisions were still fresh, but the examiner
noted that they were healing nicely. There was some mild
overall edema and thickening of the soft tissues, which, the
examiner said, was to be expected at that point,
postoperatively. The examiner noted that the veteran used
one Lofstrand type crutch and was on partial weight bearing.
The examiner stated that the overall alignment of the
extremity looked good.
The examiner ended the examination by indicating that “I
obviously could not do a vigorous examination this soon post-
operatively, and the final outcome of this will take six
months to a year, before it can be fully evaluated.” He also
stated that, however, “[e]xamination of the fibular area
revealed no evidence of a fracture of the fibula and on
review of X-rays taken recently after his latest revision, do
not show any significant abnormalities of the proximal
fibula.” Furthermore, in answering the Board’s two specific
questions, the examiner stated the following:
Question A is : Does the veteran have residual
disability from the fracture of the right fibula
that was noted in service? No. Question B: Did
the right leg disability to include his right femur
fracture, undergo an increase in severity as a
result of service? In can find no evidence in his
medical record to justify a statement that it did
indeed undergo aggravation or increase in problems
during his service time. This has been true all
along, and the present situation does not change
that original determination. He has obviously had
an increase in severity of his problems over the
last few years particularly. Is this a result of
his service? I cannot see any evidence to
significantly support a conclusion that his service
activity is the cause of his present increase in
severity of his problems. I would have to conclude
that his present problems are the result of
progressive natural processes from his original
pre-service injury. Basically, there is just no
evidence in his record to substantiate service
aggravation of the original injury. If some such
information becomes available, I would be happy to
review it.
Non medical evidence of record includes a series of
photographs submitted by the veteran in January 1994, and
which purportedly depict the right leg from various angles.
Also included is the veteran’s testimony as stated at a
personal hearing before a traveling member of the Board in
July 1996. He testified that he had a fracture to the right
femur prior to service entrance, and that such injury
occurred two years before he entered service. Hearing
Transcript (T.) at 3. The veteran stated that he only had
problems with limited range of motion in the right leg at the
time of service entrance and that he was allowed to enlist
with a light duty restriction. T. 4. In boot camp he was on
restricted duty and did not march or perform on the obstacle
course. Id. He felt that his leg improved during basic
training. T. 5. His leg bothered him when he was stationed
in England, in that he got tired when he stood. T. 6. He
re-injured the right leg while in England when he twisted the
legs after a cart and tugs ran over him. T. 7, 8. He did
not remember where he was treated for the injuries of that
accident, and the veteran indicated that he endured a
“hairline fracture in the same place it had been before.” T.
8, 9. The veteran indicated that, thereafter, he was in a
cast for 90 days. T. 9. After removal of the cast, the
veteran testified that he was prone to chronic right leg
swelling and pain, and that he walked with a limp. T. 9, 10.
He testified that he had a car accident in January 1955
wherein he fractured his ribs and had pain in the leg. T.
11. After service discharge he indicated that his leg got
better because he took care of it, and that he did not
receive medical treatment for the leg for a long time after
service separation. T. 14, 17. He currently had treatment
of the leg and was told that amputation was a possibility.
T. 18.
Also noted for factual purposes is that service connection
for residuals of a fracture of the left 10th rib was
established by a rating action in February 1980. A
noncompensable rating was assigned at that time and remains
in effect to the present. Service connection is not in
effect for a back disorder, per se. Service connection for
back muscle spasm was denied in the February 1980 rating
decision, based on service medical records and private
treatment records dated in 1978 that showed lower back pain
and muscle spasm of the back.
III. Legal Analysis
The Board has reviewed all of the evidence of record.
Regarding the issue of presumption of soundness, the Board
recognizes that right leg pathology, in the form of atrophy
of the right thigh muscles, was noted at the veteran’s entry
to service. The Board points out that the presumption of a
sound condition attaches only where there has been an
induction examination in which the later complained-of
disability was not detected. See Verdon v. Brown,
8 Vet.App. 529, 535 (1996); Crowe v. Brown, 7 Vet.App. 238
(1994); Bagby v. Derwinski, 1 Vet.App. 225, 227-28 (1991).
To the contrary, when a pre-service disability is noted in
service, it is incumbent on the Board to show that clear and
unmistakable proof exists to establish that the disability in
question existed prior to service.
In that regard, the Board points to the entries as noted in
the service medical records at the time of entry, during
service, and at the time of service separation. At all
phases of the veteran’s evaluations in service it was noted
that he had an old injury of the thigh. Especially probative
is that the veteran was seen at the orthopedic clinic during
August 1951, the month of enlistment. The old wound was
described in detail at that time, as well upon the earlier
entrance examination. The veteran’s right lower extremity
disorder was never characterized or reported in service as
other than atrophy of the right thigh muscles with deformity.
A different disorder was noted in January 1955 when, after an
automobile accident, the veteran fractured his right fibula.
But at the time of service separation it was again noted that
there was atrophy of lateral femoral muscle group of the
right thigh. The Board considers the contemporaneous medical
entries made in the veteran’s service medical records to be
clear and unmistakable proof that a right femur disorder
existed prior to service entrance. Consistent with the
existence of a pre-service orthopedic disorder is the
consistent history reported when the veteran was examined
many times and many years after service separation.
Next, the Board points out that a preexisting disease or
injury will be considered to have been aggravated by active
service, where there is an increase in disability during
service, unless there is a specific finding that the increase
in disability was due to the natural progress of the disease.
See 38 C.F.R. § 3.306(a). However, aggravation may not be
conceded where, based on all of the evidence of record
pertaining to the manifestations of the disability prior to,
during and subsequent to service, the disability underwent no
increase in severity during service. See 38 C.F.R.
§ 3.303(b). In that regard, the Board first again refers to
the service medical evidence. At the time of service
entrance the veteran was said to have a 30 percent
restriction to the flexion of the knee with regard to atrophy
of the right thigh. At the time of service separation the
veteran was said to have 75 percent of his strength in the
same muscle groups. In essence, the entrance examination
findings were reported in the negative, in terms of how much
restriction was present, and the separation examination
findings were reported in the positive, in terms of how much
strength the veteran had. “Good strength of 30 percent
restriction” and “approximately 75 percent of strength,”
essentially describe the same level of impairment both at
service entrance and service separation.
Secondly, the Board relies on the VA specialist examination
of the veteran in 1997. While the Board is cognizant of the
veteran’s post-service treatment, surgeries, and subsequent
complications thereof, as was reported in detail in this
decision, the records do not show that the veteran’s current
leg disorder is related to service or that the leg disorder
was aggravated by service. In fact, the VA examiner in
1997 unequivocally came to the opposite conclusion. The only
caveat stated by the examiner was that he was unable to
perform a vigorous physical examination of the veteran
because of the veteran’s most recent surgery. That caveat
dealt with the veteran’s current level of disability. More
important in this analysis of alleged aggravation in service
is the medical specialist’s opinions regarding the veteran’s
right leg pathology during service. When he gave his
opinions, the examiner emphasized that the scope of pathology
in service was the same all along, and that the veteran’s
current situation did not change the examiner’s
determination. The examiner unequivocally said that the
veteran had no residual disability from the fracture of the
right fibula incurred in service; which the veteran sustained
in a January 1955 automobile accident; and that the right leg
disability, to include his right femur fracture, underwent no
increase in severity as a result of service. The examiner
could find no medical evidence to justify that the veteran’s
right knee disorder underwent aggravation or increase in
severity in service, and that there was just “no evidence in
his record to substantiate service aggravation of the
original injury” Rather, it was obvious to the examiner that
an increase in severity had occurred over the last few years.
Aggravation is therefore not be conceded here because, based
on all of the evidence of record pertaining to the
manifestations of the disability prior to, during and
subsequent to service, the veteran’s disability underwent no
increase in severity during service. 38 C.F.R. § 3.303(b).
In conclusion, the Board notes that it has relied upon only
the objective evidence of record, and not the veteran’s
history, for the above determination. The Board has
considered and accepts the veteran’s contention that he had
further injury to the right lower extremity in service; both
with the occurrence as described subjectively by him at the
personal hearing, and with the automobile accident injuries
as described objectively by medical examiners in the service
medical records. However, evidence that requires medical
knowledge, such as whether these occurrence are related to
current pathology or whether they caused aggravation of the
veteran’s pre-existing condition, must be provided by someone
qualified as an expert by knowledge, skill, experience,
training, or education. Espiritu v. Derwinski, 2 Vet.App.
492 (1992). The veteran does not possess the requisite
qualifications and therefore his testimony in that regard is
not accepted. Rather, again, the Board relies upon in the
objective evidence of record which includes the VA examiner’s
medical opinions in 1997. Those opinions are otherwise
uncontradicted in the record.
The Board’s final determination is also supported by lack of
any medical opinion linking the post-service medical right
lower extremity pathology to service in any way. That is,
the evidence also does not support a finding that the
veteran’s right leg disability resulted from a disease or
injury incurred in service. See 38 C.F.R. § 3.303. In that
regard it is noted that the VA examiner’s final opinion was
that the veteran’s “present problems are the result of
progressive natural processes from his original pre-service
injury.”
Regarding the applicability of Allen v. Brown,
7 Vet.App. 439 (1995) to this case, the Board points out that
the evidence does not indicate that the non-service connected
right leg disability has been aggravated as a result of the
veteran’s service-connected rib disability. The United
States Court of Veterans Appeals (Court) has held that, when
aggravation of a veteran’s non-service-connected condition is
proximately due to or the result of a service-connected
condition, the veteran shall be compensated for the degree of
disability over and above the degree of disability existing
prior to the aggravation. Allen v. Brown, 7 Vet.App.
439 (1995). As the facts of this case are not so presented,
the Court’s precedent in Allen is not for further review.
Lastly, it is noted that the Board has considered the
representative’s request for an “independent medical expert”
opinion as to the issue on appeal. However, the Board finds
that this case does not present a question of medical
complexity or controversy. That is, no doctor who has
treated the veteran has disagreed with the findings of any
other practitioner of record. Nor does any evidence indicate
that the medical aspects of this case are too complex for the
VA records in the claims file, including the most recent VA
specialist’s examination and opinions given in 1997, to
adequately provide a basis for the decision herein. The
request for an independent medical opinion, is, thus, denied.
IV. Conclusion
For the foregoing reasons, the Board is unable to find a
reasonable basis for a grant of service connection in this
case. That includes service connection on both a direct
basis and on the basis of aggravation of a preexisting
disorder; neither of which were shown in this case. The
benefit of the doubt rule only applies where there is
approximate equipoise in the relevant evidence for and
against the claims, respectively. In this case, the
preponderance of the evidence weighs against the claim, and,
accordingly, the benefit of the doubt rule is not for
application. 38 U.S.C.A. § 5107.
The Board also notes that during the course of the appeal,
the veteran was advised of the need to submit competent
medical evidence of a current disorder and relating the
claimed disorder to service. Consequently, the Board
concludes that the veteran was furnished with documents which
explained to him the evidence necessary to support his claim.
See Robinette v. Brown, 8 Vet.App. 69 (1995).
ORDER
Service connection for a right leg disability is denied.
V. L. JORDAN
Member, Board of Veterans' Appeals
(CONTINUED ON NEXT PAGE)
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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